June 11, 2010
IN THE MATTER OF JOHN HENRIQUES, CITY OF NEWARK POLICE DEPARTMENT.
On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, DOP Docket No. 2009-2581.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2010
Before Judges Cuff and Payne.
John Henriques, a Newark Police Department detective, appeals from a final decision of the New Jersey Civil Service Commission Merit System Board denying Henriques's request for a hearing on his major disciplinary appeal as untimely. We affirm.
The record reflects that, in August 2008, investigators assigned to the police department's Alcoholic Beverage Control office, as a practical joke, convinced a new officer to dress as a woman so that he could participate in an alleged undercover operation. They then photographed the officer and circulated the photographs throughout the police department and Newark City Hall. Sergeant James Lopez, the investigators' supervisor was informed of the prank before it took place, and he did nothing to stop it. Detective Henriques was a willing participant in the joke. Charges were brought against both Lopez and Henriques, department hearings took place, and each was personally served with a Final Notice of Disciplinary Action (FNDA) on November 4, 2008. Lopez was suspended without pay for eight days, commencing on November 24, 2008 and ending on December 3, 2008; Henriques was suspended without pay for six days beginning November 10, 2008 and ending November 17, 2008.
The FNDA informed the recipients of their appeal rights, stating:
APPEAL PROCEDURE TO THE EMPLOYEE: You have a right to appeal disciplinary actions: (a) suspension or fines of more than five days at one time . . . . Your letter of appeal must be filed with the Merit System within 20 days of receipt of this form.
Counsel for the men timely appealed the FNDA issued to Lopez on November 7, 2008, but failed to timely appeal the FNDA issued to Henriques. Counsel recognized the omission in January 2009, and by letter dated January 13, 2009, sought to remedy the mistake by filing a late appeal with respect to Henriques and requesting that the Board accept it and add Detective Henriques's appeal to the timely-filed appeal of the Lopez matter.
In a final decision issued on February 4, 2009, the Director of Merit System Practices and Labor Relations for the New Jersey Civil Service Commission declined to accept the appeal because it was not perfected within twenty days of receipt of the FNDA. This appeal followed.
N.J.S.A. 11A:2-15, which governs the procedures for appeals such as that sought to be filed on Henriques behalf, provides in relevant part that:
Any appeal from adverse actions specified in N.J.S. 11A:2-13 and subsection a(4) of N.J.S. 11A:2-6 shall be made in writing to the Civil Service Commission no later than 20 days from receipt of the final written determination of the appointing authority.
See also N.J.A.C. 4A:2-1.1(b) (requiring, unless a different time period is stated, that an appeal must be filed within twenty days "after either the appellant has notice or should reasonably have known of the decision" being appealed); N.J.A.C. 4A:2-2.8(a) (requiring that an appeal from a FNDA be filed within twenty days of receipt by the employee, and stating that receipt of the notice by the employee's attorney on a different date does not affect the appeal period).
The Supreme Court construed the predecessor to N.J.S.A. 11A:2-15 in Borough of Park Ridge v. Salimone, 21 N.J. 28 (1956). In that case, the Borough's Chief of Police filed his appeal from his dismissal following entry of a judgment of conviction against him for bookmaking beyond the ten-day period then established by statute. Although the appeal was initially rejected by the Civil Service Commission, on reconsideration, it accepted the matter, finding that it could consider an appeal so long as it was received within a reasonable time, and that the ten-day period set forth in the statute was merely directory. Id. at 43.
The Supreme Court rejected the position of the Civil Service Commission. In doing so, it recognized the Commission's statutory authority to investigate on its own motion disciplinary charges against a classified civil servant within thirty days after receipt of a notice of removal. Id. at 45. However, the Court held "this power to act on its own motion is distinct and separate from an employee's right of appeal." Ibid. Turning to the right of appeal, the Court held:
The ten-day period prescribed for action by the dismissed employee can admit of no construction other than that it is mandatory in its requirement. Weaver v. New Jersey Dept. of Civil Service, 6 N.J. 553, 558 (1951). This is not a harsh rule, for coupled with it is the power given to the Commission to entertain such proceedings after the expiration of the employee's time to appeal and within 30 days after notification to it, if in its discretion the facts and circumstances require it. This prevents arbitrary foreclosure of the remedy of the civil servant. But, the time must come when the appointing authority can rely upon the conclusion of the issue and proceed to make arrangements in the interest of the public to replace the dismissed employee without fear that its action will be undone.
Not only does common practice require it, but the fundamental policy of the law demands definite limitations. [Salimone, supra, 21 N.J. at 46.]
Our subsequent decisions have followed Salimone and have unyieldingly treated both the prior ten-day and the present twenty-day appeal period as a strict jurisdictional requirement. See Wildwood v. Neiman, 44 N.J. Super. 209, 215 (App. Div. 1957) (relying on Salimone's holding that the Civil Service Commission was without authority to determine the propriety of defendant's dismissal when his appeal was untimely in affirming the dismissal of Neiman's county court action and determining that the ten-day period for appeal to the Civil Service Commission had passed); Murphy v. Dept. of Civil Serv., 155 N.J. Super. 491, 493 (App. Div. 1978) (citing Salimone when observing "there is some reason to believe that the limitation of time to appeal, as specifically stated, is jurisdictional" and, in that event, the time period can only be enlarged by the Legislature); Cf. Schaible Oil v. N.J. Dept. of Envtl. Prot., 246 N.J. Super. 29, 31 (App. Div.) (finding the principle that that enlargement of the statutory time for appeal to a state administrative agency lies solely within the power of the Legislature and not with the agency or the courts to be "firmly embedded in our law," and citing Salimone in support of that conclusion), certif. denied, 126 N.J. 387 (1991).
The Newark Police Department particularly relies on our decision in Mesghali v. Bayside State Prison, 334 N.J. Super. 617 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). In that case, Ali Mesghali, a senior corrections officer was removed from his employment for negligence resulting in injury to an inmate, and received a lesser penalty for failure to report an injury. Although Mesghali received a FNDA on November 30, 1998, his attorney did not learn of the disciplinary action until January 6, 1999. After an appeal, filed by letter dated January 11, 1999, was deemed untimely, Mesghali appealed to us. On appeal, he claimed that he had not advised his counsel of the FNDA because he had already authorized an appeal, should it be necessary, and he assumed that his counsel had taken care of the matter. Id. at 620.
We found that excuse to be inadequate and affirmed the administrative dismissal of the appeal. Id. at 623. In doing so, we noted that Mesghali's appeal did not present a case in which the appointing authority's final notice failed to advise of the twenty-day appeal period. Id. at 622. The notice, we found was adequate. Ibid. We observed:
The amendment to N.J.A.C. 4A:2-2.8(a) made it incumbent upon Mesghali to contact his attorney after he received the final notice to verify that his attorney had undertaken a timely appeal. The form in question also provided that "[y]our letter of appeal must be filed with the Merit System Board within 20 days of receipt of this form." Thus, reasonable prudence from an employee facing removal from employment and a relatively short appeal period should have motivated Mesghali to verify his attorney's expected action. We do not agree with Mesghali that, under the circumstances of this case, "fundamental fairness" requires that we extend the twenty-day time frame. [Id. at 623.]
Similarly, in the present case, it was the obligation of Henriques to ensure that his appeal was timely filed. That he failed to do so does not render the Commission's decision fundamentally unfair or deprive Henriques of due process. See Reilly v. City of Atlantic City, 532 F.3d 216, 235 (3d Cir. 2008) (a disciplined employee cannot claim a denial of due process after his failure to take advantage of the processes that are available, unless those processes are patently inadequate), cert. denied sub nom. Flipping v. Reilly, ___ U.S. ___, 129 S.Ct. 1316, 173 L.Ed. 2d 585 (2009).
It is well established in matters such as that presented here that our review of the actions of the administrative agency is extremely limited, and that we can reverse its determination only upon evidence that it was arbitrary, capricious or unreasonable. Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963). Finding no such evidence here, we affirm.
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